AN ORDINANCE GRANTING TO AL TERWEY, DBA MR. D’S BAR AND GRILL, A CONCURRENT
USE PERMIT FOR FIXED AWNINGS TO PROJECT INTO AND OVER THE RIGHT-OF-WAY OF
GRAND AVENUE AND RAMSEY STREET FOR PROPERTY LOCATED AT 5622 GRAND AVENUE.

BY COUNCILOR STAUBER:

The city of Duluth does ordain:

Section 1.Under the authority of Section 100 of the 1912 Home Rule
Charter of the city of Duluth, as amended, and subject to the conditions,
limitations and restrictions hereinafter set forth, permission is hereby
granted to Al Terwey, DBA Mr. D’s Bar and Grill, their successors and
interests, referred to herein as the permittees, to occupy, serve and maintain
fixed awnings into and over that part of Grand Avenue and Ramsey Street
adjoining Blocks 24, 25, 26 and 27, Block 137, West Duluth Fifth Division, as
the same was dedicated to the use of public in the plat of West Duluth Fifth
Division, on file and of record in the office of the register of deeds in and
for the St. Louis County, Minnesota, described as follows:

A 0.6 foot building overhang (awning) 9'0" above grade, lying on
the westerly 50.19 feet of the northwesterly side of building and a 4.9 foot
building overhang (awning) lying on the northerly 50 feet of the northwesterly
side of the building of said property; and

A 1.0 foot building overhand (awning), 9'0" above grade, 70 feet
in length on the south side of the building; and

A 0.6 foot building overhang (awning) 9'0" above grade, lying on
the southeasterly 100 feet of the building.

Section 2.That before this ordinance shall be effective for any
purpose whatsoever, the aforesaid permittees shall file with the city clerk:
a duly executed and acknowledged written acceptance of the terms of this
ordinance; a certificate of insurance approved as to form by the city attorney
evidencing that the permittees have in force insurance meeting the following
requirements:

Commercial general liability insurance policy shall be maintained
in force by permittees in an amount not less than $1,200,000 for bodily
injuries and in an amount not less than $400,000 for property damage or
$1,200,000 single limit coverage. Such coverage shall include all permittees’
activities occurring on the permitted premise whether said activities are
performed by employees or agents under contract to permittees. Such policy of
insurance shall be approved by the city attorney and shall contain a condition
that it may not be cancelled without 30 days written notice to the city of
Duluth. The city of Duluth shall be named as an additional insured on said
policy of insurance required by this paragraph. Current ISO additional
insured endorsement CG 20 10 is not acceptable. If the ISO 20 10 is used, it
must be a pre-2004 edition.

Section 3.That this permit shall expire on July 1, 2009, for any
purpose whatsoever, unless prior to such date, the permittees file with the
city clerk certificates of insurance evidencing that the permittees have in
force insurance meeting the following requirements:

Comprehensive general liability insurance policy shall be
maintained in force by permittees in an amount not less than $1,500,000 for
bodily injuries and in an amount not less than $500,000 for property damage or
$1,500,000 single limit coverage. Such coverage shall include all permittees’
activities occurring on the permitted premise whether said activities are
performed by employees or agents under contract to permittees. Such policy of
insurance shall be approved by the city attorney and shall contain a condition
that it may not be cancelled without 30 days written notice to the city of
Duluth. The city of Duluth shall be named as an additional insured on said
policy of insurance required by this paragraph. Current ISO additional
insured endorsement CG 20 10 is not acceptable. If the ISO 20 10 is used, it
must be a pre-2004 edition.

Section 4.That said permit granted under this ordinance may be
terminated at any time when and if the city of Duluth determines to use the
area occupied by said permittees for any purpose in accordance with the duly
dedicated public easement or other lawful use. Giving the permittees 30 days
written notice by resolution of the council of the city of Duluth to the last
known address of the permittees shall be sufficient notice of termination.

Section 5.That upon the giving of the notice of termination as
aforesaid, the permittees shall remove all fixtures and pertinences of every
kind whatsoever thereto from the tract of land described above within said 30
days, all at the expense and cost of the permittees, and without right on the
part of the permittees to claim from the city of Duluth, or any of its
officers, agents or servants, any compensation, reimbursement for damages of
any kind whatsoever.

Section 6.That by the acceptance of the terms of this ordinance as
aforesaid, the permittees hereby agree to save harmless and defend and
indemnify the city of Duluth against any claims or demand which may arise
against the city of Duluth by reason of any act or omission of the permittees,
its employees, agents, and assigns and agree that such fixed awnings shall be
so constructed and at all times maintained so as in no way to interfere with
or damage any portion of the sidewalk, or sewer, water mains, gas mains,
pipes, conduits, or other public utilities now or to be hereinafter located in
any part of said Grand Avenue and Ramsey Street rights-of-way and agree that
the city of Duluth shall not be liable for damage caused to such fixed awnings
while the city is engaged in making repairs to the public sidewalks or public
utilities or during snow removal operations, and agree to pay to the city of
Duluth all extra costs of installation of any such sewers, gas mains, water
mains, pipes, conduits or other public utilities made necessary by the
presence of fixed awnings in said Grand Avenue and Ramsey Street rights-of-way.

Section 7.The permittees shall, at its expense, protect, support,
temporarily disconnect, relocate in the same street, alley or public place, or
remove from the street, alley or public place, any property of the grantee
when required by the proper city officials by reason of snow removal, traffic
conditions, public safety, street vacation, freeway and street construction,
change or establishment of street grade, installation of sewers, drains, water
pipes, power lines, signal lines and tracks, the installation or repair of any
other type of structures or improvements by governmental agencies, when acting
in a governmental or proprietary capacity.

Section 8.The permittees shall further observe the following
conditions:

(a)This permit shall be in effect until the property currently held
by Mr. D’s Bar and Grill, is transferred to another party, at which time the
permit shall expire;

(b)This permit is subject to revocation by a resolution of the city
council and 14 days notice to the permittees for failure to maintain the terms
and conditions of this permit or at the discretion of the city;

(c)Fixed awnings shall be limited to the designated area shown on
Page III I 5 of the December 11, 2007, staff report to the planning commission
(Public Document No. ________).

Section 9.The term of this permit shall expire on June 1, 2020.

Section 10.That this ordinance shall take effect and be in force 30
days from and after its passage and publication.

STATEMENT OF PURPOSE: This ordinance is a counter action to Resolution 08-0014 and approves the concurrent use permit request for awnings from Mr. D’s
located at 5622 Grand Avenue. The purpose of the request is bring the
existing awnings into compliance with city codes regarding use of public
sidewalks for private uses.

The Duluth city planning commission voted to approve this concurrent use
permit following a public hearing held December 11, 2007 by a vote of 8 yeas,
0 nays, and 0 abstentions.

Application Received: October 26, 2007. Does not require a deadline for
action. (FN07157)